Alabama Advisory Opinions May 17, 2004: AGO 2004-138 (May 17, 2004)

AGO 2004-138.

Dear Judge Davis:

This opinion of the Attorney General is issued in response to your request.

1. Does the procedure outlined herein with regard to absentee ballots issued by the absentee ballot manager ("ABM") on or after May 14, 2004, with respect to citizens residing in Mobile County Commission District Two comply with applicable law?

2. Can the ABM send revised ballots to the 70 citizens residing in Mobile County Commission District Two to enable those voters to vote the same ballot that will be used on election day on June 1, 2004?

3. If the answer to Question 2 is in the affirmative, what absentee ballot should be processed by the election officials should the voter submit a second or revised ballot?

4. If your answer to Question 2 is in the affirmative and the ABM sends a revised ballot to these citizens and one or more of the citizens do not return the second or revised ballot, should the first ballot be processed by the election officials?

5. How should the ABM process absentee ballots issued before May 14, 2004, that include Freeman Jockisch's name as a candidate? Does any distinction exist with regard to absentee ballots issued, but not returned to the ABM, as compared to absentee ballots issued, completed, and returned to the ABM?

Your request is submitted on behalf of the Election Appointment/Canvassing Board of Mobile County ("Board"), which is seeking advice regarding the proper procedure for processing absentee ballots following the removal of a candidate from the June 1, 2004, primary election ballot for Mobile County Commission District Two. On May 11, 2004, Freeman Jockisch was convicted of 19 felony charges by a jury. At the time of that conviction, Jockisch was a candidate in the 2004 Republican Primary Election for Mobile County Commission District Two. On May 13, 2004, Jockisch submitted to the Mobile County Probate Judge a request that his name be removed from the ballot for the primary election. The chair of the Mobile County Republican Executive Committee also submitted a request that Jockisch's name be removed from the ballot for the Republican primary election.

Mobile County uses the Shouptronic direct-vote electronic voting device. The ballots for the voting equipment had not been printed at the time the request for withdrawal of the candidate was submitted, and appropriate steps have been taken to delete Jockisch's name from the ballot that will be utilized for the electronic-voting equipment on June 1, 2004.

Mobile County uses the Sequoia Scan System for counting absentee ballots. The absentee ballots for voters in District Two can be marked to block Jockisch's name on the absentee ballots. These revised ballots will be issued by the ABM to those voters in District Two that request an absentee ballot on or after May 14, 2004.

The ABM advises this Office that, as of May 13, 2004, 70 ballots have been issued by the ABM to citizens residing in District Two. Some of these 70 ballots have been completed and returned to the ABM. The Board would like to send revised ballots to these 70 citizens that would enable these citizens the opportunity to cast the same ballot that will be sent to those citizens who request an absentee ballot on or after May 14, 2004, and will be the same ballot that will be used on election day, June 1, 2004. If revised ballots cannot be sent to those voters who have completed and returned absentee ballots, the Board asks whether revised ballots can be sent to those voters who have been issued an absentee ballot but have not completed and returned the ballot to the ABM.

The state and county political party executive committees certify the names of all primary election candidates to the Secretary of State and the probate judge, respectively.

Ala. Code § 17-16-11 (1995). The deadline for making this certification is 60 days before the date of the primary election. Id . The state and county executive committees have the power to determine who shall be entitled and qualified to vote in primary elections, be candidates, or otherwise participate in those elections, without interference from the courts, so long as the committees do not run afoul of some statutory or constitutional provision. Knight v. Gray , 420 So. 2d 247 (Ala. 1982); Perloff v. Edington , 302 So. 2d 92 (Ala. 1974).

The law is silent with respect to a procedure for amending the certification of candidates. It has generally been the practice of election officials to allow a political party to amend a certification to correct an error in the certification or to remove a candidate that withdrew or was disqualified. For practical purposes, any amendments should be made before the ballots are printed or in a timely manner that will allow the necessary changes to be made to the ballot. This Office has previously stated that the exact nature of the procedure for making the changes may, in fact, vary with the type of voting machines or electronic voting equipment used. Thus, the necessary changes must be made on a case-by-case basis by the election officials involved. Opinion to Honorable Don Davis, Mobile County Probate Judge, dated October 31, 2002, A.G. No. 2003-022.

Given the type of electronic-voting equipment used in Mobile County, the ballots for the electronic-voting equipment will not include the name of the withdrawn candidate. The ballots for absentee voting, however, have been printed, and 70 ballots have been issued to absentee voters. It is, therefore, too late to have those absentee ballots reprinted. There are some voters who have requested or who will request an absentee ballot, but who have not yet been issued an absentee ballot. With respect to those absentee voters, you state that the name of the withdrawn candidate will be blocked out on those ballots. It is the opinion of this Office that this procedure is in compliance with Alabama law and the practice that has been followed by election officials when amendments to ballot certifications have been made after the ballots have been printed.

With respect to whether revised absentee ballots may be mailed to those 70 persons who have been issued absentee ballots, Alabama law does not provide a procedure for casting a new or revised ballot for those voters who have cast an absentee ballot for a deceased, disqualified, or otherwise ineligible person. Davis opinion at 5. Furthermore, if a procedure were adopted, it would create a change in voting practice that must be precleared under section 5 of the Voting Rights Act before it could be enforced.

Given the answer to Question 2, Questions 3 and 4 are moot. The answer to Question 2 is also applicable to Question 5. There is no procedure for sending revised absentee ballots to voters who have been issued an absentee ballot, but who have not yet completed and returned the ballot. Given the facts surrounding the withdrawn candidate, those voters who have not completed their absentee ballot are most likely aware that the candidate has withdrawn from the election. The absentee ballots issued before May 14, 2004, should be processed by the ABM in the same manner that all other absentee ballots are processed. The Alabama Supreme Court has held that "votes cast for a deceased, disqualified, or ineligible person, although ineffective to elect such person to office, are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards other candidates." State ex rel. Cleveland v. Stacy , 263 Ala. 185, 187, 82 So. 2d 264, 265 (1955).

The procedure proposed for blocking the name of a withdrawn candidate from the absentee ballots that will be sent to those persons requesting an absentee ballot on or after May 14, 2004, complies with Alabama law. Alabama law does not provide a procedure for casting a new or revised ballot for those voters who have cast an absentee ballot for a deceased, disqualified, or otherwise ineligible person.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

TROY KING

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

TK/BFS

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